Opinion  EC-COI-85-85

Date:	11/19/1985
Organization:	State Ethics Commission

A lawyer designated to represent a public instrumentality of the Commonwealth as its general counsel is a state employee for the purposes of G.L. c. 268A. He may also represent two communities in matters in which the state is neither a party nor has a direct and substantial interest. Because the state will not be affected by his advice to the communities, the state will not have a direct and substantial interest in these matters.

Facts

You are a partner in the law firm ("Firm") which serves as general counsel to state agency ABC. The Board of Directors of ABC has specifically designated you as the member of the Firm to serve in the uncompensated position of General Counsel. ABC, represented by its staff and the Firm, has been negotiating contracts for services from private entities on behalf of communities within the commonwealth. The private entities have offered three contracting alternatives to the communities:

1. the communities may contract through ABC ("Communities DEF");
2. the communities may contract independently ("Communities UVW"); or
3. the communities may contract independently as equity owners ("Communities XYZ").

Several of the communities have decided to contract with the private entities under either option 2 or 3. These communities (Communities and XYZ) have approached the Firm seeking its representation in rendering the necessary opinions and documents for such contracting. You state that these communities are aware that the Firm serves as general counsel to ABC. You further state that the ABC Board of Directors has voted to authorize the joint representation of ABC and Communities and XYZ by the Firm in order to obtain the benefits of shared legal fees and expenses.

Question

Does G.L. c. 268A permit you to represent Communities and XYZ in furnishing the necessary opinions and documents while simultaneously serving as General Counsel to ABC?^[1]

Answer

Yes, as described below.^[2]

Discussion

ABC is a public instrumentality of the commonwealth and is therefore a state agency for the purposes of G.L. c. 268A. (Citations omitted). As the partner in the Firm designated to serve as the General Counsel of ABC, "you [perform] services for...a state agency...on an intermittent or consultant basis," making you a state employee under section 1(q) of the conflict statute.

Section 4 of Chapter 268A provides that no state employee shall otherwise than as provided by law for the proper discharge of official duties, receive compensation from or act as agent or attorney for anyone other than the commonwealth or a state agency in relation to any particular matter^[3] in which the commonwealth or a state agency is a party or has a direct and substantial interest. As counsel to Communities and XYZ, you would be receiving compensation from and acting as attorney for someone other than the commonwealth or a state agency. The issue, then, is whether such representation would be in connection with a particular matter in which the state or one of its agencies is a party or has a direct and substantial interest.

You state that Communities UVW and XYZ would enter into separate Agreements with the private entities, totally independent of ABC. Accordingly, neither the state nor a state agency would appear to be a party to such Agreements.^[4] You further state that ABC will be neither advantaged nor disadvantaged by the participation or lack of participation by the Communities under any of the three options. In other words, the independent Communities' decisions to participate through options 2 or 3 has no impact on ABC's contract with the private entities under option utilities under option 1. Based on these representations, the Commission concludes that neither the state nor a state agency (e.g. ABC) has a direct and substantial interest in any contract Communities and XYZ would execute under options 2 or 3. Section 4 would therefore not prohibit you from rendering the required opinions and documents for Communities UVW and XYZ, despite your continuing representation of ABC under option 1.

You should also be aware that you are subject to the general standards of conduct set forth in § 23.^[5] Section 23 provides that no state or municipal employee shall:

1. accept other employment which will impair his independence of judgment in the exercise of his official duties [G.L. c. 268A, § 23(¶ 2)(1)];
2. use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others [G.L. c. 268A, § 23(¶ 2)(2)];
3. by his conduct give a reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person [G.L. c. 268A, § 23(¶ 2)(3)];
4. accept employment or engage in business activity which will require him to disclose confidential information which he has gained by reason of his official position, nor use such information or materials^[6] to further his personal interests. (G.L. c. 268A, § 23(¶ 3)].

For example, you would violate § 23(¶ 2)(3) if your service as General Counsel for ABC unduly influenced your decision making processes in rendering opinions for Communities UVW and XYZ. In your situation, it appears that sufficient disclosure to all concerned parties has taken place to avoid violations of these standards of conduct. Moreover, you state that the ABC Board of Directors has voted to authorize the joint representation, and that the appointing officials in Communities UVW and XYZ will make a determination that joint representation is in the best interests of the Community, which provide further § 23 safeguards.

 

End Of Decision

^[1] While this opinion addresses your involvement in he dual capacities in light of G.L. c. 268A, § 4, the rationale of the opinion is equally applicable to your Firm partners who are subject to comparable restrictions under G.L c. 268A § 5(d).

^[2] This opinion deals only with the applicability of G.L. c. 268A restrictions to your situation. Provisions of the Code of Professional Responsibility are outside the jurisdiction of the Commission and therefore are not addressed here.

^[3] The term "particular matter" is defined in the conflict law as any judicial or other proceeding, application submission. request for a ruling or other determination, contract, claim. controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court." G.L. c. 268A  § 1(k).

^[4] By comparison. ABC would be a party to any community's contract under option 1. Section 4 would prohibit your performance of any work for independent Communities under option 1 while simultaneously serving as ABC's General Counsel.

^[5] On July 9, 1985, the Supreme Judicial Court ruled that the Commission does not possess the jurisdiction to enforce G.L. c. 268A, § 23. The discussion contained above is based on prior Commission rulings and is intended to provide guidance to you.

^[6] These materials are defined as "materials or data within the exemption to the definition of public records as defined by G.L. c. 4, § 7.